State v. Scott (N. J. Sup.). State v. Starkey (Me.).. ... 880 Trustees of Free Public Library of Newark .1102 v. Civil Service Commission (N. J.)..... 261. 120 Trustees of Orphans' Home in Baltimore .1099 City, Novak v. (Md.). 235 Tuell, Inhabitants of Marion v. (Me.). 120 Tunison's Will, In re (N. J. Prerog.) 431 Turner's Estate, In re (Pa.).. 997 484 695 916 West Jersey Trust Co. v. Halliwell (N. J.) 276 West Jersey & S. R. Co., Cullen v. (N. J.) 283 | Zartman, In re (Pa.). 717 THE ATLANTIC REPORTER VOLUME 90 CURLEY V. BALDWIN et al. MUNICIPAL CORPORATIONS (§ 706*) — USE OF GENCE. In an action for injuries received by a boy 821⁄2 years old, who was struck by defendant's automobile while he was crossing the street, evidence held to show no negligence by the defendant and to show that the plaintiff was negli gent. [Ed. Note.-For other cases, see Municipal | Corporations, Cent. Dig. § 1518; Dec. Dig. 8 706.*] Exceptions from Superior Court, Providence and Bristol Counties; George T. Brown, Judge. Action by Clarence Curley, by his next friend, against L. F. N. Baldwin and others. To the ruling of the Superior Court directing a verdict for the defendants, the plaintiff excepts. Exception overruled, and case remitted, with directions to enter judgment upon the verdict. plaintiff at the time was 81⁄2 years of age. The point on North Main street where the accident is alleged to have occurred is approximately 60 feet to the north of the northerly line of Abbott street, and from this point for a long distance, in both directions, North Main street is a straight thoroughfare. In this portion of North Main street there are double tracks for electric cars, centrally located, going to and from Pawtucket, and known as the east and west tracks; the east track being used by the cars going in the direction of Pawtucket, and the west track by the cars going in the direction of Providence. The witnesses who observed the accident, other than the plaintiff, locate the occurrence on the easterly side of that portion of the highway which is used by vehicles. Opposite the point of the accident and upon the west side of the highway, occupying the space between the curbstone and the west track, was a pile of dirt which had come from an excavation made by the Providence Gas Company in the carrying on of its work of relaying gas mains. Upon the east side of the highway, also opposite the point of the accident, were two wagons, an ice wagon and an express wagon, standing beside the curbstone. The defendant was driving an automobile in which were seated three friends and was proceeding at the rate of about seven miles an hour along North Main street, following a street car on the north-bound or easterly track going in the direction of Pawtucket. The defendant noticed the pile of dirt, from the excavation, on the west side of the street and the presence of the ice cart and express wagon standing on the easterly side. He also observed another car approaching on the south-bound or west track and was obliged to follow the northbound car, as he could not do otherwise under the prevailing conditions. There was a space of some three or four feet between the ice cart and the express wagon as they stood near the easterly curbstone, and the defendant says, and he is corroborated by other witnesses, that, when the front of his automobile reached a point in the highway practiThe accident occurred between 11 and 12 cally opposite the intervening space between o'clock in the forenoon at a point on North the two wagons, the plaintiff, apparently comMain street north of Abbott street. The ing from the sidewalk, ran out between the For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes Waterman & Greenlaw, of Providence (Charles E. Tilley, of Providence, of counsel), for plaintiff. Barney & Lee, of Providence (Walter H. Barney and Francis I. McCanna, both of Providence, of counsel), for defendants. PER CURIAM. This is an action on the case for negligence to recover damages for personal injuries sustained by the plaintiff, Clarence Curley, on December 26, 1905. Suit was commenced by the plaintiff, through his next friend, on December 21, 1907, against L. F. N. Baldwin, B. F. Blackinton, and George E. Pierce, jointly. At the trial on June 16, 1911, the case was discontinued as to Blackinton and Pierce. The trial resulted in a disagreement. The case was tried a second time, in October, 1912, and a verdict for the defendant was directed by the trial judge. The case is now before us upon the exception of the plaintiff to the ruling of the trial court directing a verdict for the defendant. nation of its weight was properly placed; the evidence being sufficient to authorize the submission of the case to the jury. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 3935-3937; Dec. Dig. § 1002.*] Vincent, J., dissenting. Exceptions from Superior Court, Providence and Bristol Counties; Charles F. Stearns, Judge. Action by George S. Bell, Jr., against the Providence Gas Company. Verdict for plaintiff, and case transferred from the superior court on defendant's exceptions. Exceptions A. B. Crafts and James A. Williams, both wagons into the street and against the right- | for that of the jury, upon whom the determihand front mud guard of the automobile. The plaintiff claims that, at the time of the accident, he came from the west side of the street; that he looked in both directions be fore stepping into the street and also after he was upon the street; that at neither time did he see anything in the street except an electric car in the vicinity of Abbott street; that he then continued across the road and got to the first rail of the east or northbound track; and that the next thing that he remembers he was in the hospital. He did not see the automobile at any time. In the first place, the testimony does not show any negligence on the part of the defendant. He was driving his car at a very moderate speed and at a reasonable distance behind the electric car which he was following. Further, the testimony does not show any negligent handling or management of the automobile by the defendant which occasioned the accident. If the story of the defendant and his witnesses, as to the manner in which the accident occurred and the direction in which the plaintiff was proceeding at the time, is correct, the plaintiff was clearly guilty of contributory negligence. If the plaintiff was proceeding from the west side of North Main street to the east, as he claims he was, and before attempting to cross looked up and down the street, as he says he did, the automobile would have been in plain sight and he would have seen it. The most favorable view that can be taken from the plaintiff's testimony is that, with the lapse of time, he may have forgotten just what he was doing at the precise moment of the accident and may have confused the conditions when he attempted to cross and was struck with those attending an earlier passage over the high-court, there was ample evidence which, if way from the west side. In viewing the case through the testimony of the plaintiff or through the testimony of the defendant, it seems to us that the plaintiff was negligent and that the verdict for the defendant was properly directed. The case is remitted to the superior court. with direction to enter judgment upon the Evidence, in an action for injuries to plaintiff's oyster beds by the pollution of a stream with by-products from defendant's gasworks, held sufficient to warrant the submission of the case to the jury. PER CURIAM. This court as a whole has spent a vast amount of time in the careful examination and consideration of the voluminous briefs and arguments of counsel, and of the great mass of testimony so ably analyz ed and criticised therein, and has minutely examined all of the defendant's exceptions with a view to the determination of all the questions raised on behalf of the defendant. [1, 2] The principal exception of the defendant was to the refusal of the trial judge to grant defendant's motion for a new trial, claiming that the plaintiff failed to show by a preponderance of the evidence that the defendant was in any way responsible for the damage done to plaintiff's oysters. The evidence was in sharp conflict upon all points; but, in the opinion of the majority of the believed by the jury, tended to show that deleterious by-products of the defendant's gas works had been, from time to time, allowed to escape into the waters of the Providence river in sufficient quantities to cause the destruction of oysters to a very large amount; that these conditions had prevailed from a time prior to 1904-05, when certain general investigations were made on behalf of the state authorities (board of shell-fish commissioners) down to and including the time of the alleged damage to the plaintiff (1907); that, while it does not clearly appear that any large amounts of water-gas tar or other by-products were turned into the river after the year 1905, there is evidence to show that there was and continued to be in the river in the year 1905, and for several years thereafter, a large area or bank of mud in front of and near the gasworks, [Ed. Note.-For other cases, see Fish, Cent. several feet in depth and many square feet in Dig. §§ 9, 10, 15; Dec. Dig. § 7.*] 2. APPEAL AND ERROR (§ 1002*) — REVIEW VERDICTS-CONFLICTING EVIDENCE. The Supreme Court, in reviewing a verdict upon conflicting evidence, will not substitute its judgment as to the weight of the evidence area, which did contain in large quantities such by-products, and which by the action of tides and currents would be likely to gradually and continuously work further and further down the river and bay, and to cause the pol |